Xie v Chan [2022] NSWSC 652

Supreme Court New South Wales

Medium Neutral Citation: Xie v Chan [2022] NSWSC 652 Hearing dates: 8 April 2022 Date of orders: 8 April 2022 Decision date: 08 April 2022 Jurisdiction: Common Law Before: Campbell J Decision: 1) Order pursuant to s66G of the Conveyancing Act 1919 (NSW) that David Wang, solicitor, (the Trustee) be appointed as trustee of the property situated at and known as Lot 7 in Strata Plan 60536 also known as Unit 7/3-9 Second Avenue, Campsie (the Property) which vests in him, subject to incumbrances, to be held by him on the statutory trust for sale. 2) Order that the Trustee be empowered and authorised to obtain a valuation of the Property by engaging a registered valuer. 3) Order that the Trustee be empowered to offer the Property for sale, and to sell the Property by engaging a licenced real estate agent (the Agent). 4) Order that the Defendant provide vacant possession of the Property to the Agent on or before the date fixed by any contract of sale for completion, except if the Defendant is the purchaser named in the contract. 5) Order that on or before the date fixed for completion: a) the Defendant and any other occupants vacate the Property; b) the Defendant deliver up all keys for the Property to the Agent; and c) the Defendant remove from the Property all personal property being vehicles, rubbish and chattels which are not vested in the Plaintiff for the purpose of providing vacant possession, unless she is the purchaser named in the contract for sale. 6) In the event that the Defendant fail to deliver up vacant possession of the Property in accordance with the orders sought in 5 herein, a Warrant or Writ of Possession shall issue forth with in favour of the Trustee / Plaintiff to secure possession of the property. 7) Order that the Plaintiff's costs of these proceedings to be paid out of the proceeds of sale, and if necessary, to be assessed, as to the Plaintiff's share a proportion 1/3 and the Defendant's share a proportion 2/3. 8) Order that the Trustee's costs be paid out of the proceeds of sale. 9) Order that the Trustee apply the proceeds of sale of the Property as follows: a) pay the costs of the sale of the Property, including but not limited to the costs of the Trustee's fees, the Agent's fee's, tax and duty, and disbursements; b) apportion 50% of the remaining balance to the plaintiff and pay the plaintiff the whole of that portion; and c) apportion 50% of the remaining balance to the defendant and from that portion pay the whole of the outstanding mortgage to Perpetual Trustee Company Limited then pay the defendant the remainder of that portion, the balance to the defendant. 10) Liberty to apply on 3 days' notice. Catchwords: LAND LAW – co-ownership – statutory trust for sale – appointment of trustee – re-payment of mortgage over land by co-owners Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Jian Xi Xie (Plaintiff) Kwai Wan Chan (Defendant) Representation: Counsel: Mr A Zhou (Solicitor)(Plaintiff) Ms Chan (Litigant in Person)